There is an abundance of misinformation circulating regarding the criminal justice system, and this often materializes through discussions between citizens accused and their friends, family members, acquaintances and anyone they may have encountered in jail after their arrest. Misdemeanor assault family violence cases can be the nexus for bad advice and severe permanent consequences, so it is important for defense attorneys to educate themselves and their clients with the implications of a common plea agreement.
No matter the client’s prior exposure to the criminal justice system, an attorney is often met with nonchalance from his client in regards to misdemeanor cases. Many people accused of misdemeanor offenses have little concern for the long-term ramifications of a conviction. The majority are satisfied to accept a plea agreement when offered deferred adjudication probation and the promise that, if they succeed on probation, they will never have a criminal conviction and may have the opportunity to seal their record.
This premise sounds appealing, especially when faced with a charge of family violence, but family violence cases do not afford defendants such a clean resolution. It is important for a defendant to consider the nature of the probation offered in these cases, the ability to seal this from a criminal record, and the lingering affirmative finding of family violence when pleading guilty or no contest to this charge.
The first consideration when advising a client on a plea agreement for an assault family violence case is whether he or she is being set up to fail due to the daunting nature of the common conditions of deferred adjudication probation. The court and probation department generally require probationers to complete numerous standard conditions as they would in other misdemeanor cases, as well as 24-week educational course (most commonly battering intervention and prevention program). This course requires the attendee to meet once a week in a group setting for counseling and education and, should the probationer miss two classes at any time in the 24 weeks, they must restart the entire program. The attendee must schedule and pay for each class. Failure to comply with this condition could result in a probation violation, jail time or a final adjudication of guilt for the case as charged.
The second key issue with deferred adjudication probation is that many defendants who enter into plea agreements for this rigorous probation have made their decision based on the misconception that their criminal record can be sealed as it can be in other misdemeanor cases after successfully completing the probation. Under Section 411.081(d) of the Texas Government Code, a court can prohibit criminal justice agencies from disclosing to the public criminal history record information related to certain offenses for which the offender was placed on deferred adjudication. An order of non-disclosure of criminal records can prevent sources from disclosing information about someone’s arrest, the nature of the charge, and the disposition, to anyone outside of law enforcement and government agencies. Assault family violence is one of a few exceptions to the premise that most misdemeanors are eligible. After completion of all of the conditions of probation, a client will be able to avoid final conviction, but may not be able to avoid ramifications with employment, housing and student loan applications that come with this kind of permanent record.
Perhaps the least understood consequence of a plea of no contest or guilty in a family violence case is the affirmative finding of family violence (AFFV) that affixes to someone’s permanent record, no matter the sentence or ultimate disposition of the case. Though this is not a criminal conviction, it can have far broader implications than anything discussed previously. Family violence is defined under the Texas Family Code as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” Tex. Fam. Code § 71.004. In almost every plea agreement for a case of assault family violence, the prosecutor will ask for, and the judge will find, that family violence as so defined has occurred. This finding cannot be removed from someone’s permanent record and has the ability to impact child custody, as well as preclude adoption altogether. Additionally, there are consequences under Texas and federal law that affect someone’s ability to purchase, possess or transfer firearms or ammunition.
It is imperative that someone who is charged with this type of offense be made aware of the effects of a plea agreement for deferred adjudication probation. The assurance of not having a final conviction may improperly outweigh the realities of this type of probation, as well as the inability for someone to walk away completely from this episode in his or her life. Sheridan Lewis